'Second' Marriage By Muslim Man Not Bigamy U/S 494 IPC; Islam Permits Polygamy: Madhya Pradesh High Court

The Madhya Pradesh High Court has observed that a Muslim man who contracts a 'second' marriage during the subsistence of his first marriage cannot be prosecuted for the offence of bigamy under Section 494 IPC. A bench of Justice BP Sharma observed that Section 494 IPC applies to those cases where the second marriage is void by reason of the subsistence of the first marriage. However, the bench added, since under Muslim Personal Law, a Muslim male can have more than one wife, the subsequent marriage does not become void on the ground that the first marriage is subsisting. With this, the bench partly allowed a petition filed by a Muslim husband, quashing the bigamy charge framed against him. However, the trial will proceed for other offences punishable under Sections 498-A, 342, 323 and 506 Part-II IPC. "…the applicability of Section 494 IPC depends upon whether the second marriage is void by reason of the subsistence of the first marriage. In the present case, the parties are admittedly governed by Muslim Personal Law, which recognizes the permissibility of plurality of marriages. Therefore, the essential ingredient of Section 494 IPC, namely that the second marriage must be void on account of the subsistence of the earlier marriage, is not satisfied," the bench remarked. Briefly put, a police report was lodged by the petitioner's first wife wherein she alleged that after their marriage in December 2002, the petitioner assaulted her for not bearing a child and eventually solemnized a second marriage in May 2022. She also claimed that she was pressurised to give him 'Khula', i.e., 'divorce' by mutual consent. Before the HC, the petitioner's counsel argued that Section 494 IPC can't be invoked as the petitioner is covered by Muslim Personal Law, which permits as many as four wives at the same time.The counsel relied on the Kerala High Court's judgment in Venugopal vs. Union of India 2015 to argue that Section 494 IPC would only apply when a Muslim man marries a fifth time. On the other hand, the counsel for the complainant-wife argued that, under Muslim Personal Law, unless a declaration is submitted, the provisions of the Muslim Personal Law (Shariat) Application Act, 1937 would not apply to the petitioner, and hence he isn't entitled to have four wives at the same time. Against the backdrop of these submissions, the bench noted that Section 494 IPC is subject to the personal law governing the parties. The Court relied upon the Supreme Court judgments in Sarla Mudgal vs. Union of India 1995 and Khursheed Ahmad Khan vs. State of UP 2015, to note that Muslim Personal Law recognizes polygamyThe bench further noted that even if the allegations of the complainant are accepted at their face value, the act of the petitioner in contracting a second marriage would not satisfy the essential ingredients of Section 494 of the IPC. The bench added that continuation of the prosecution for the said offence would amount to an abuse of the process of the Court. "Therefore, a second marriage contracted by a Muslim male during the lifetime of his first wife is not treated as void merely on the ground that the first marriage is still subsisting. In view of this legal position, the essential ingredient of Section 494 of IPC, namely that the subsequent marriage must be void on account of the subsistence of the first marriage is not fulfilled in the present case," the bench observed. Consequently, the High Court partially allowed the petition and set aside the proceedings related to the bigamy charge. However, the Court clarified that the allegations and investigation materials prima facie disclose the commission of the other alleged offences, including cruelty and criminal intimidation. The trial court has been directed to independently examine the remaining charges and decide the matter in accordance with the law.Case title - Mohd. Arif Ahmad Jahagir Khan vs The State Of Madhya PradeshCitation:Click Here To Read/Download Order

'Second' Marriage By Muslim Man Not Bigamy U/S 494 IPC; Islam Permits Polygamy: Madhya Pradesh High Court

Sparsh Upadhyay

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